PRACTICAL PAPER – III

MOOT COURT, PRE-TRIAL PREPARATIONS AND PARTICIPATION

IN TRIAL PROCEEDINGS
LL.B (SEM V)

Assignment
1. Observations on court proceedings (Civil & Criminal)
2. Report of internship (Civil & Criminal)

Taught by Hon’ble Judge, Mr. R.V Deshmukh

Submission by-
Pandey Deepika Omprakash
Roll. No. 37
OBSERVATION OF COURT PROCEEDINGS
Litigation is an entire ecosystem in itself. When I went to courts, I realized
it’s not just the act of appearing and arguing and getting an order, but what
seamlessly happens in the background.
During the pursuance of my law course I have met several Lawyers while
travelling, in the bar room, in court while waiting for a matter, as my opposing
counsels. Some clients of my Senior approached me in courts asking for legal
advice, met several other people and networked in the most basic way possible.
I observed the court proceedings, saw seniors arguing, learnt and got better
at my craft. It would be an understatement to say that this ecosystem is not only
crucial to our practice but also the mental health of lawyers.
As the courts are opening now physically, it would be exciting to see courts
coming back to life.

CIVIL CASE
The stages of trial of Civil Case observed in court are as follows:
1. Attendance of parties
2. Framing of Charges.
3. Examination of Plaintiff witnesses
A. Chief-Examination.
B. Cross- Examination.
C. Re- Chief Examination.
D. Re- Cross Examination.
4. Examination of Defendant witnesses
A. Chief – Examination
B. Cross – Examination
C. Re-chief Examination
D. Re- Cross Examination
5. Arguments
A. Arguments of the plaintiff advocate
B. Arguments of the defendant advocate
6. Judgment
7. Decree.

Civil Case Observation

In December 2018, I went to Tis Hazari District court, Delhi as a legal trainee to
watch the law in action - understand how courts operate, how cases are presented
in court, how the rules of procedure and evidence work, and the impact of the
justice system on people in our society. The court proceeding was open to the
public so I took a seat in an Additional District & Sessions court. Everybody stood
up to bow as soon as the Judge entered courtroom and they maintained the
decorum very respectfully during the session. The court staff was very
cooperative with the advocates there.
A civil case came up for hearing on the same day. After observing its advocate
presenting legal argument I approached him to know the facts and involved
provisions. The Advocate was humble and kind enough to share the details which
are the following-
IN THE COURT OF DISTRICT MUNSIF: TIS HAZARI
O.S.No.435 of 2002
Between
Sri Mahesh Kashyap … Plaintiff
v.
Sri Laxman Dwivedi … Defendant
PLAINT PRESENTED UNDER ORDER VII RULE 1 AND SEC. 26 OF
C.P.C.
(1) Address of the Plaintiff :
Sri Mahesh Kashyap, S/o. Chandraprakash, Hindu, aged about 43 years working
in T.T. Devasthanam and residing at No.17 ‘D’ type quarters Chanakyapuri,
Delhi. For the services of summons, notices etc. to the address of the plaintiff as
stated above and of his counsel.
(2) Address of the defendant :-
Sri Laxman Dwivedi, S/o. Swaminath Dwivedi, Hindu, aged about 52 years,
businessman and residing at No.321, Mukherji Nagar, Delhi. For the services of
summons, notices etc. to the address of the defendant as stated above.
(3) The defendant is running a business on provisions and is having his shop at
Rajendra Nagar, Delhi to run the business. He was in urgent need of some funds
to purchase provisions for his shop from the wholesale dealer. Hence he
approached the plaintiff demanding some loan from him. Both are known to each
other for many years.
(4) The defendant borrowed a sum of Rs.70000/- (seventy thousands only) from
the plaintiff on 7-09-2002 for his family business and to discharge some sundry
debts, agreeing to repay the same on demand either to the plaintiff or to his agent
with an interest at the rate of 25% p.a. and executed the suit promissory note on
the same date in Delhi. The suit pro-note is marked herewith as Doc.No.1.
(5) Despite several oral demands made by the plaintiff and his servants, agents,
the defendant did not pay a single pie either towards interest or towards Principal.
(6) Thus, the plaintiff issued a registered notice through his counsel to the
defendant, on 5th August 2005 calling upon the defendant to repay the said debt
with the accused interest, through the defendant duly received the notice on 9th
August 2005. He failed to reply or to pay. The office copy of the lawyer notice
along with the postal receipt and acknowledgement are marked herewith as
Doc.No.2 and 3 respectively.
(7) The cause of action has arisen on and from 10th October 2002 when the suit
debt is borrowed by the defendant and executed the suit pro-note on and from 5th
August 2005 when the notice was sent calling the defendant to repay on and 9th
August 2005. When the defendant duly received notice in Delhi within the
jurisdiction of this Hon’ble Court.
(8) The plaintiff valued the suit at Rs. 85,500/- and paid a court fees under Court-
fees Act, 1870
Therefore it is prayed that this Hon’ble court may be pleased to pass a decree and
judgment in favour of the plaintiff.
(a) Directing the defendant to pay a sum of Rs. 85,500/- (Rupees eighty five
thousand and five hundred only) and the future interest there on from the date of
the plaint till the date of realization
(b) Directing the defendant to pay the costs of this proceedings and
(c) Granting such other further reliefs that Hon’ble court deems fit and proper
under the circumstances of this case and thus render justice.
Plaintiff.
On 12th Feb. 2007 we went to the district court where this above stated case
O.S.No.435/2002 was taken for evidence, Defandant was called out and set
exparte. Plaintiff was as PW1 exparte examination.
PW1: On his examination spoke about the loan he advance to the defendant, the
execution of the suit pronote which was marked as “A1” his issuance of notice
through his counsel office and copy of the notice with postal receipt was marked
as “ExA2”. The postal acknowledgement is also marked as “ExA3”. Further he
prayed to the court to decree the suit as prayed for.
Judgment: - After listening patiently to both the parties the judge decreed in the
suit in costs.
OBSERVATION IN A CRIMINAL CASE
Name of the Parties: Suresh Yadav v. State of Maharashtra, 2020.
This is an another case of homicidal action by cyanide poisoning. It was perhaps
in this case, the guidelines as to the proof of certain facts in "poison murder cases"
were laid down by this Court. It was observed:
Where the evidence is circumstantial the fact that the accused had motive to cause
death of the deceased, though relevant, is not enough to dispense with the proof
of certain facts which are essential to be proved in such cases, namely did the
deceased die of poison in question? Had the accused the poison in his possession?
And had the accused an opportunity to administer the poison in question to the
deceased? It is only when the motive is there and these facts are all proved that
the court may be able to draw the inference, that the poison was administered by
the accused to the deceased resulting in his death."
From the foregoing cases, it will be seen that in poison murder cases, the accused
was not acquitted solely on the failure of the prosecution to establish one or the
other requirement which this Court has laid down in this case. We do not also
find any case where the accused was acquitted solely on the ground that the
prosecution has failed to prove that the accused had the poison in his possession.
The accused in all the said cases came to be acquitted by taking into consideration
the totality of the circumstances including insufficient motive, weakness in the
chain of circumstantial evidence and likelihood of the deceased committing
suicide.
The poison murder cases are not to be put outside the rule of circumstantial
evidence. There may be obvious very many facts and circumstances out of which
the Court may be justified in drawing permissible inference that the accused was
in possession of the poison in question. There may be very many facts and
circumstances proved against the accused which may call for tacit assumption of
the factum of possession of poison with the accused. The insistence on proof of
possession of poison with the accused invariably in every case is neither desirable
nor practicable. It would mean to introduce an extraneous ingredient to the
offence of murder by poisoning. We cannot, therefore, accept the contention
urged by the learned counsel for the appellant. The accused in a case of murder
by poisoning cannot have a better chance of being exempted from sanctions than
in other kinds of murders. Murder by poisoning is run like any other murder. In
cases where dependence is wholly on circumstantial evidence, and direct
evidence not being available, the Court can legitimately draw from the
circumstances an inference on any matter one way or the other.

Judgment: Dipankar Datta, J., has given an anxious consideration to the three
propositions laid down in Suresh Yadav case. The learned Judge did not consider
them as invariable criteria of proof to be established by the prosecution in every
case of murder by poisoning. The learned Judge said:

"It is now necessary to consider the arguments which have been advanced on
behalf of the appellant. The first contention is that the essential ingredients
required to be proved in all cases of murder by poisoning were not proved by the
prosecution in this case. Reference in this connection is made to a decision of the
Allahabad High Court in Mt. Gajrani v. Emperor. AIR 1933 All 394 and to two
unreported decisions of this Court in Chandrakant N Nyalchand Seth v. The State
of Bombay, Criminal Appeal No. 120 of 1957 decided on February 19, 1958 and
Dharambir Singh v. The State of Punjab, Criminal Appeal No. 98 of 1958,
decided on 4.11.1958. In these cases, the Court referred to three propositions
which the prosecution must establish in a case of poisoning; (a) that death took
place by poisoning; (b) that the accused had the poison in his possession, and (c)
that the accused had an opportunity to administer the of 1958 D/- 4.11.1958 (SC)
turned upon these three propositions. There, the deceased had died as a result of
poisoning by potassium cyanide, which poison was also found in the autopsy.
The High Court had disbelieved the evidence which sought to establish that the
accused had obtained potassium cyanide, but held, nevertheless that the
circumstantial evidence was sufficient to convict the accused in that case. This
Court, did not, however, accept the circumstantial evidence as complete. It is to
be observed that the three propositions were laid down not as the invariable
criteria of proof by direct evidence in a case of murder by poisoning, because
evidently if after poisoning the victim. the accused destroyed all traces of the
body, the first proposition would be incapable of being proved except by
circumstantial evidence. Similarly, if the accused gave a victim something to eat
and the victim died immediately on the ingestion of that food with symptoms of
poisoning and poison, in fact, was found in the viscera, the requirement of proving
that the accused was possessed of the poison would follow from the
circumstances that the accused gave the victim something to eat and need not be
separately proved."
The case was adjudged through the following stages in court as per the Criminal
Procedure Code, 1973
Pre Trial
Trial
Post Trial
PRE TRIAL
1. Commission of an offence (cognizable or non cognizable)
2. A. Information to Police

a. Information of cognizable offence:

Under Section 154 of the Code of Criminal Procedure, a FIR or First

Information Report is registered. FIR puts the case into motion. A FIR is
information given by someone (aggrieved) to the police relating to the
commitment of an offense.

b. Information of non cognizable offence :

In case of non cognizable offence N.C.R (non cognizable report) is registered

by police under section 155 of Cr.P.C. but the police cannot start investigation
or arrest the accused without the order of a Magistrate having power to try
such case.

B. Complaint to Magistrate

Section 2 (d) of the Code of Criminal Procedure defines the term 'complaint
as any allegation made orally or in writing to a Magistrate, with a view to his
taking action under this Code, that some person, whether known or unknown,
has committed an offence, but does not include a police report. On receipt of
a complaint a Magistrate has several courses open to him.

He may take cognizance of the offence and proceed to record the statements
of the complainant and the witnesses present under Section 200, Cr Thereafter
if in his opinion there is no sufficient ground for proceeding he may dismiss
 the complaint under Section 203, Cr PC. If in his opinion there is sufficient
ground for proceeding he may issue process under Section 204, Cr PC.

However, if he thinks fit, he may postpone the issue of process and either
inquire into the case himself or direct an investigation to be made by a police
officer or such other person as he thinks fit for the purpose of deciding whether
or not there is sufficient ground for proceeding (Section 202, Cr PC).

He may then issue process if in his opinion there is sufficient ground for
proceeding or dismiss the complaint if there is no sufficient ground for
proceeding.

3. Investigation by Police - Police conduct investigation for

1) For collection of evidence;

2) Interrogation statement of accused;

3) Statement of witnesses;

4) Scientific analysis / opinion if required. During this time, at any stage

decided by investigating agency, accused persons can be arrested.

In case of cognizable offence police can start investigation after the registration
of FIR, no prior approval of magistrate is necessary. But in case of non
cognizable offence, prior approval of magistrate is necessary to start
investigation.

4. Anticipatory Bail- Upon registration of FIR for cognizable criminal offence

the accused may make an application for anticipatory bail in session court or
high court. If anticipatory bail is granted then the accused cannot be arrested.
If anticipatory bail is rejected then the accused can be arrested without
warrant.

5. Arrest of the accused - In case of cognizable offence police can arrest the
accused without warrant. However in case of non cognizable offence prior
approval of magistrate is necessary.
6. Production of accused to magistrate- Within 24 hours of the arrest the
accused shall be produced before a magistrate having jurisdiction to try such
cases.
7. Remand- Whenever an accused is arrested for any offence and police cannot
complete investigation within 24 hours then such person is produced before a
magistrate for seeking extension of police or magisterial custody.
8. After investigation is completed- If investigating agency feels a prima facie
case is made out, charge sheet is filed in Court through the public prosecutor.
If police feels that no prima facie case is made out, a final report filed in
Court.

9. Cognizance of offence by magistrate- After filling of charge sheet the next

stage is taking cognizance of offence by magistrate under section 190 of the
Criminal Procedure Code. In the language of the Hon'ble Apex Court
employed in its earliest decision R.R.Chari v. State of U.P AIR 1951 SC 207
“taking cognizance does not involve any formal action or indeed action of any
kind but occurs as soon as a Magistrate as such applies his mind to the
suspected commission of offence"

10. Service of summons/warrant to accused and Process to compel appearance

under chapter 6 of Cr.P.C.

11. Appearance of accused before court and engagement of advocate.

12. Filing bail application/furnishing surety

13. Decision is taken by the Court after hearing the public prosecutor and the
counsel for defence

A. On question of Charge Sheet

 a. Court can reject charge sheet, in which case the accused is discharged. Or,

b. Court can accept that a prima facie case is made out, frame the charges, and
post the case for trial. Case goes to next stage.

B. On question of Final Report

a. Court can accept the final report- case is closed and accused is discharged.
Or,

b. Court can reject the final report, and direct the police to further investigate
the case. Case goes back to the Stage of investigation. Or, c. If the Court direct
the case to be posted for trial. Case goes to next stage.

14. Framing of Charge- After considering the police report and other important
documents the accused is not discharged then the court frames charges under
which he is to be tried.

15. Conviction on plea of guilty- If the accused pleads guilty, the court shall
record the plea and may, at discretion convicts the accused.

16. If the accused pleads not guilty- Case is posted for trial.

TRIAL

17. Commencement of trial- Generally speaking trial of a case commences when

the case is posted for examination of witnesses. Trial may be -

a. Sessions trial

b. Warrant trial

c. Summons trial

d. Summary trial
18. Prosecution evidence- After the charges are framed, and the accused pleads
guilty, then the court requires the prosecution to produce evidence to prove
the guilt of the accused. The prosecution is required to support their evidence
with statements from its witnesses. This process is called "examination in
chief". The magistrate has the power to issue summons to any person as a
witness or orders him to produce any document.

19. Statement of the accused – Section 313 of the Criminal Procedure Code
gives an opportunity to the accused to be heard and explain the facts and
circumstances of the case. The statements of accused are not recorded under
oath and can be used against him in the trial.

20. Defence evidence- An opportunity is given to the accused in a case where

he is not being acquitted to produce so as to defend his case. The defense can
produce both oral and documentary evidence. In India, since the burden of
proof is on the prosecution the defense, in general, is not required to give any
defense evidence.

21. Final Arguments- Public Prosecutor and the defence counsel present their
arguments.
22. Judgment and Sentence by the Court- The final decision of the court
with reasons given in support of the acquittal or conviction of the accused is
known as judgment.

23.Arguments on Sentence- When the accused is convicted, then both sides are
invited to give arguments on the punishment which is to be awarded. This is
usually done when the person is convicted of an offense whose punishment is
life imprisonment or capital punishment.

However when the sentence is pronounced in a summons case, the parties need
not argue on the amount of punishment given. The sentence is the sole discretion
of the judge.
24. Judgment of court passing sentence - After the arguments on sentence,
the court finally decides what should be the punishment for the accused. While
punishing a person, the courts consider various theories of punishment like
reformative theory of punishment and deterrent theory of punishment. Court
also considers the age, background and history of an accused and the judgment
is pronounced accordingly.

POST TRIAL STAGE

25. Appeal- (within specified period of limitation)/Revision:- Appeal can be

filed by party aggrieved by judgment on acquittal / conviction /sentence. On
notice being issued to the opposite parties, arguments are placed before
Appellate court by defence counsel and the public prosecutor. Or,

Revision Application:

Where there is right of appeal provided but no appeal was filed then in its
discretion the Sessions Court or the High Court can entertain a revision to
prevent miscarriage of Justice occurred by the orders of the lower court.

26. Judgment of the Appellate Court or Court having revisional jurisdiction

27. Execution of sentence.

Conclusion
The court observations and internships teaches a law student that there is more
for a law career than leafing through countless textbooks- lengthy judgments and
academic viewpoints. It makes law students think a bit more about practical
applications of the things we are studying, rather than just the theory. It enables
us to make more well-rounded critical arguments about statutes and precedents
by improving the quality of our legal arguments - both orally and in writing.
INTERNSHIP EXPERIENCE - CIVIL & CRIMINAL
Internship Experience at Advocate Gaurav Kajla: Legal Research & Drafting
Work and Filling RTI
About the Advocate
Chambers of Advocate Gaurav Kajla, Tis Hazari Courts.
Advocate Gaurav is an independent practicing lawyer in the Supreme Court, High
Courts as well as NCLT/NCLAT and NCDRC. His areas of practice in field of
law are:
Litigation in SLP’s in Supreme Court, Appellate Jurisdiction and Original
Jurisdiction in Supreme Court as well as High Courts.
Civil, Criminal, Arbitration laws.
Corporate Insolvency, Securities, Debt recovery and other corporate-related
matters.
Public Interest Litigations
Office Address: Chamber No. T-44A, Tehsil lane, Tis Hazari Courts, Delhi-
110054.
Mode of the Internship
Offline
Duration
16th Dec 2018 to 16th Jan 2019.
Application Process
I applied directly via mail by sending my CV and Cover Letter.

First Day Formalities and Initial Impressions

It being an online internship, my first interaction was with Advocate Gaurav
himself via telephone. I was asked about my course, my preferences and career
goals. After that, I was briefed about the work culture and ongoing matters. I was
added in the office whatsapp group where the junior advocates and other office
staff welcomed me.
Work Culture of the Organisation
Advocate Gaurav and all the staff are very courteous and sociable yet
professional. The interns are assigned work by Gaurav Sir directly or through the
junior advocates. He and the junior advocates welcome any teaching opportunity
to young students.

Junior Advocates especially Advocate Pranav Kashyap are very benevolent. I was
assigned to Advocate Pranav, who at a lot of times gave me guidance and career
advice. The staff is also very supportive, courteous and always ready to provide
all the assistance required for tasks provided.
Main Tasks
Legal Research
Drafting Petitions and Applications
Filing RTIs
Attending Online Client Sessions
Briefing Counsel
Good Things
There were a lot of good things. I am listing a few of them below:
Practical learning experience
Knowing about various sectors of law. Researching a diverse set of laws widened
the scope of my legal knowledge.
More preference is given to the practical application of the law than theoretical
knowledge.
Being a first year student, I was not assigned a lot of drafting work. The petitions,
applications and contracts drafted by me were proofread by Gaurav Sir himself
and all the suggestions and corrections were very politely dictated to me.
Due credit was given for every work.
Tons of encouragement.
The opportunity of direct communication and coordination with the clients is
given to a few capable interns.
Students can perform their moral obligation of giving back to society by assisting
Sir in his PIL and Writ petitions for social causes.
Stipend
I received a stipend of Rs. 1500/-
Attached below are my internship certificates-